When to Mediate: Managing Uncertainty and Knowing Your Client

Deciding when to mediate requires managing uncertainty and knowing your client.

The Timeline

Single plaintiff cases have three stages. Class cases add three more:

1.       Early Mediation

• Pre-filing

• Post filing, pre-discovery

• Pre-Class / PAGA list disclosure

2.       Litigated Mediation

• Class/PAGA list disclosed

• E-Discovery Commenced

• Post Plaintiff / PMK Deposition

• With MSJ / Class Cert pending

3.       Late Mediation/MSC or Post Class Cert

• Post MSJ – Pre-trial

• Post Class Cert pre-class discovery

4.       Mediation during Class Discovery

• Class Wide E-discovery

• Class related PMKs

• Full class data disclosure

5.       Mediation with Class MSJ / dispositive motion pending

• Decertification motions

• MSJs

6.       Late Class Mediation

• Post Class Dispositive/decert motion, pre-trial

Most cases fall somewhere within that framework. Class cases add complexity but follow the same logic: more information brings more certainty — but at the cost of time and money.

Why It Can’t Always Be Early

When a demand letter lands or complaint is filed, employers possess employee records, pay data, disciplinary files, communications, and investigation results (if any). They know the plaintiff, the PMKs, the likely witnesses, and have some sense how those witnesses will perform. Ideally, the employer defendant should have enough to evaluate the case early and strategically share information that allows the plaintiff to do the same.

But corporations aren’t built to respond to litigation. Legal departments are cost centers, often a “shared services,” detached from the front-line. If the matter is farmed out, outside counsel often faces limits: one point of contact, partial access to employees or data, and little budget for a deep early dive. Outside counsel must ask: are the gaps in the case, or the client’s hesitation, so significant that an early mediation would be unproductive?

Plaintiffs: don’t be surprised if you know more than opposing counsel. You may face “delay, deny, defend” tactics, but you’ll always deal with corporate realties.  Companies don’t treat litigation response as a core competency. Sometimes, formal discovery is the only way to get a straight answer. Plaintiff’s counsel must ask: do you need that straight answer for productive mediation, or can you use the uncertainty during a mediation to your advantage?

EPLI Issues

EPLI carriers often demand discovery before meaningfully discussing resolution. Resolving matters within the SIR avoids this problem. But for insured higher dollar value matters, expect case development sufficient for carries to check their boxes, model exposure, and allow adjusters to deem the case resolution-ready.

The Other Side

Timing isn’t just about managing your uncertainty; you must think about the other side – what do they want and what do they know. Remembering the Six Opposing Counsel Archetypes? Provide enough information to them to conclude mediation would be productive.

Using Mediation: Uncertainty Reduced, Uncertainty Weaponized

Pre-mediation disclosures can alleviate factual uncertainty, more efficiently and often more productively. This is especially true for early class mediations, where all parties know any settlement will need to be supported by sufficient disclosures to satisfy Dunk/Kullar. And in single plaintiff cases, companies will be more responsive to targeted document inquiries for the purposes of mediation as opposed to a deep dive into their ESI.

But be prepared: mediators weaponize uncertainty. How will your client perform during deposition? We all know PMK depositions can crater quickly. What’s lurking in all those slack messages, emails, texts? Were telegram, whatsapp, signal used? The further you go, the more your case resolves on known facts, rather than the fear of the unknown.

Know your Client

Once you’ve assessed factual uncertainties, talk to your client. As defense counsel, ask about:

• Cash flow concerns related to booking a resolution on the mediation date.

• Quarter end concerns that could affect the mediation.

• Accounting issues affecting the choice of mediation date.

• Incentive plans affected by resolution.

• Flat fee agreements and payment tranches triggered if the matter doesn’t resolve.

• Other cases that may affect mediation scheduling and attention.

• Internal political issues affected by your case.

Use scheduling as an opening to discuss business strategy, not just case posture. This is your moment to shift from “hired gun” to trusted advisor.

If you’re plaintiff’s counsel, have the same conversation, just inverted. Where does this case fit in your client’s broader life? What non-legal realities might drive (or derail) settlement?

And don’t assume defense counsel has surfaced every internal constraint. Better to raise those questions early than discover, on mediation day, that the defendant “can’t settle this quarter for accounting reasons.”

Perfect Timing Doesn’t Exist, Informed Timing Does.

There’s no algorithm for choosing the perfect mediation date. But there’s an effective mindset: understand what’s uncertain, be comfortable with the uncertain, and know your client.

That’s how you time effective mediation.

Next week: AI. For better or worse, your clients are using it, so you need to, too. We’ll break down what transformer models do, why it’s different from how we use language, and how to use (and not misuse) them in practice.

Until then,

Monday x Morello Mediation.

None of this is legal advice. Your mileage may vary.